CHAPTER I.

THE CONSTITUTION.

1787.

"THE American constitution is the most wonderful work ever struck off at a given time by the brain and purpose of man;" but it had its forerunners.

England had suffered the thirteen colonies, as free states, to make laws each for itself and never for one of the others; and had established their union in a tempered subordination to the British crown. Among the many guides of America, there had been Winthrop and Cotton, Hooker and Haynes, George Fox and William Penn, Roger Williams and John Clarke; scholars of Oxford and many more of Cambridge; Gustavus Adolphus and Oxenstiern; the merchants of the United Netherlands; Southampton and Baltimore, with the kindliest influences of the British aristocracy; Shaftesbury with Locke, for evil as well as for good; all the great slavetraders that sat on thrones or were fostered by parliament; and the philanthropist Oglethorpe, who founded a colony exclusively of the free on a territory twice as large as France, and though he had to mourn at the overthrow of his plans for liberty, lived to see his plantation independent.

There were other precursors of the federal government; but the men who framed it followed the lead of no theoretical writer of their own or preceding times. They harbored no desire of revolution, no craving after untried experiments. They wrought from the elements which were at hand, and shaped them to meet the new exigencies which had arisen. The least possible reference was made by them to abstract doctrines;

they moulded their design by a creative power of their own, but nothing was introduced that did not already exist, or was not a natural development of a well-known principle. The materials for building the American constitution were the gifts of the ages.

Of old, the family was the rudiment of the state. Of the Jews, the organization was by tribes. The citizens of the commonwealths of the Hellenes were of one blood. Among the barbarous tribes of the fourth continent, the governments and the confederacies all rested on consanguinity. Nations, as the word implied, were but large communities of men of one kin; and nationalities survive to this day, a source of strength in their unity, and yet of strife where two or more of them exist in their original separateness and are nevertheless held in subjection under one ruler. Rome first learned to cherish the human race by a common name and transform the vanquished into citizens.

The process of assimilation which Rome initiated by war received its perfect development in the land where the Dutch and the Swedes, and in the country north-west of the Ohio the French, competed in planting colonies; where the English, the Irish, the Scotch for the most part came over each for himself, never reproducing their original nationality; and where from the first fugitives from persecution of all nations found a safe asylum. Though subjects of the English king, all were present in America as individuals.

The English language maintained itself without a rival, not merely because those speaking it as their mother tongue very greatly outnumbered all others, and because all acknowledged English supremacy; but for the simplicity of its structure; its logical order in the presentment of thought; its suitableness for the purposes of every-day life; for the discussion of abstract truths and the apprehension of Anglo-Saxon political ideas; for the instrument of the common law; for science and observation; for the debates of public life; for every kind of poetry, from humor to pathos, from descriptions of nature to the action of the heart and mind.

But the distinctive character of the new people as a whole, their nationality, so to say, was the principle of individuality

which prevailed among them as it had nowhere done before. This individuality was strengthened by the struggles with Nature in her wildness, by the remoteness from the abodes of ancient institutions, by the war against the traditions of absolute power and old superstitions, till it developed itself into the most perfect liberty in thought and action; so that the American came to be marked by tho readiest versatility, the spirit of enterprise, and the faculty of invention. In the declaration of independence the representatives of the United States called themselves "the good people of these colonies." The statesmen who drew the law of citizenship in 1776 made no distinction of nationalities, or tribes, or ranks, or occupations, or faith, or wealth, and knew only inhabitants bearing allegiance to the governments of the several states in union.

Again, this character of the people appeared most clearly in the joint action of the United States in the federal convention, where the variant prejudices that still clung to separate states eliminated each other.

The constitution establishes nothing that interferes with equality and individuality. It knows nothing of differences by descent, or opinions, of favored classes, or legalized religion, or the political power of property. It leaves the individual alongside of the individual. No nationality of character could take form, except on the principle of individuality, so that the mind might be free, and every faculty have the unlimited opportunity for its development and culture. As the sea is made. up of drops, American society is composed of separate, free, and constantly moving atoms, ever in reciprocal action, advancing, receding, crossing, struggling against each other and with each other; so that the institutions and laws of the country rise out of the masses of individual thought, which, like the waters of the ocean, are rolling evermore.

The rule of individuality was extended as never before. The synod of the Presbyterians of New York and Philadelphia, a denomination inflexibly devoted to its own creed, in their pastoral letter of May 1783, published their joy that "the rights of conscience are inalienably secured and interwoven with the very constitutions of the several states." Religion was become avowedly the attribute of man and not of a cor

poration. In the earliest states known to history, government and religion were one and indivisible. Each state had its special deity, and of these protectors one after another might be overthrown in battle, never to rise again. The Peloponnesian war grew out of a strife about an oracle. Rome, as it adopted into citizenship those whom it vanquished, sometimes introduced, and with good logic for that day, the worship of their gods. No one thought of vindicating liberty of religion for the conscience of the individual till a voice in Judea, breaking day for the greatest epoch in the life of humanity by establishing for all mankind a pure, spiritual, and universal religion, enjoined to render to Cæsar only that which is Cæsar's. The rule was upheld during the infancy of this gospel for all men. No sooner was the religion of freedom adopted by the chief of the Roman Empire, than it was shorn of its character of universality and enthralled by an unholy connection with the unholy state; and so it continued till the new nation-the least defiled with the barren scoffings of the eighteenth century, the most sincere believer in Christianity of any people of that age, the chief heir of the reformation in its purest form-when it came to establish a government for the United States, refused to treat faith as a matter to be regulated by a corporate body, or having a headship in a monarch or a state.

Vindicating the right of individuality even in religion, and in religion above all, the new nation dared to set the example of accepting in its relations to God the principle first divinely ordained in Judea. It left the management of temporal things to the temporal power; but the American constitution, in harmony with the people of the several states, withheld from the federal government the power to invade the home of reason, the citadel of conscience, the sanctuary of the soul; and not from indifference, but that the infinite spirit of eternal truth might move in its feedom and purity and power.

With this perfect individuality extending to conscience, freedom should have belonged to labor. What though slavery existed and still exists in the older states known to history, in Egypt, in China, coming down continuously from an unknown date; what though Aristotle knew no mode of instituting a republican household but with a slave; and Julius Cæsar,

when Italy was perishing by the vastness of its slave estates, crowded them with new hordes of captives? What though the slave-trade was greedily continued under the passionate encouragement of the British parliament, and that in nearly all of the continent of Europe slavery in some of its forms prevailed? In America, freedom of labor was the moral principle of the majority of the people; was established, or moving toward immediate establishment, in a majority of the states; was by the old confederation, with the promptest and oftrepeated sanction of the new government, irrevocably ordained in all the territory for which the United States could at that time make the law. The federal convention could not interfere with the slave laws of the separate states; but it was careful to impose no new incapacitation on free persons of color; it maintained them in all the rights of equal citizenship; it granted those rights to the emancipated slave; and it kept to itself the authority to abolish the slave-trade instantly in any territory that might be annexed; in all other states and lands, at the earliest moment for which it had been able to obtain power.

The tripartite division of government into legislative, executive, and judicial, enforced in theory by the illustrious Montesquieu, and practiced in the home government of every one of the American states, became a part of the constitution of the United States, which derived their mode of instituting it from their own happy experience. It was established by the federal convention with a rigid consistency that went beyond the example of Britain, where one branch of the legislature was still a court of appeal. Each one of the three departments proceeded from the people, and each is endowed with all the authority needed for its just activity. The president may recommend or dissuade from enactments, and has a limited veto on them; but whatever becomes a law he must execute. The power of the legislature to enact is likewise uncontrolled except by the paramount law of the constitution. The judiciary passes upon every case that may be presented, and its decision on the case is definitive; but without further authority over the executive or the legislature, for the convention had wisely refused to make the judges a council to either of them.